Of the Hon. Isaac C. Bates, Representative from Massachusetts, delivered in the House of Representatives, on the bill for the removal of the Indians. May 19, 1833
Mr. Speaker: I shall take it for granted that the States which have passed laws subjecting the Indian tribes to their jurisdiction, mean what, by their legislative acts, they say they mean: and that the laws which they have passed, are to be enforced. I reject even the supposition, that these laws are made not to be executed, but in mockery-to be used, is an expedient, a contrivance-the means of driving a bargain. Upon such an attempt, come from what quarter it may-States or individuals-the House would frown indignantly. This granted, I affirm, that the bill before us does not meet the exigency of the case, nor present fairly and fully the question upon which we are to decide.
There are, at the South, several tribes of Indians-the Cherokees, Creeks, Chickasaws, and Choctaws- with whom the United States stand in this relation, viz: They are under the protection of the United States. The boundary is defined between them and the people of the United States, which no white man is at liberty to pass without a license under the authority of the United Sates. In short, they hold the guaranty of the United States, in all the solemn forms of a treaty stipulation, by which the faith of a nation can be pledged, to protect and defend them. The States of Georgia, Mississippi, and Alabama, have passed laws, as these tribes say, directly violating their territorial and national rights. Take the law of Georgia as an exemplification of the laws of the three States. The eighth section makes it penal for a Cherokee to 'endeavor' to prevent one of his tribe from emigrating. A father, therefore, may not influence his child, nor a guardian his ward. No Sir; he thus exposes himself to four years confinement to hard labor. What will men, who are fathers, or not fathers; what will men who are free, say to this?
The fifteenth section enacts, 'that no Indian, or descendant of an Indian, within the Cherokee Nation of Indians, shall be a competent witness in any court of Georgia, in a suite in which a white man is a party, unless such white man resides within said nation.'- While Georgia makes the Indians citizens, or subjects, she does not leave them to the common law to be excluded for infamy, interest, or incompetency of any kind; but she proscribes the nation-and that without reference to the character, talent,or capacity of individuals, whether Christian or heathen, civilized or savage. They are all turned off the stand by one general sweeping interdict of law. Now, sir, whatever may be the form of the constitution of Georgia, if it sanctions this act it is a despotism. Tiberius never dictated an act in its essence more tyrannical or in its character more unjust. And to take away the only apology that any man could offer-the incapacity of the people to testify-this very law admits their capacity by admitting them to be witnesses if the party to the suit be resident within the Cherokee Nation. But this is not the worst feature of the law, if worse can be.
By the seventh section, 'all laws, ordinances, orders, and regulations of any kind whatever are declared to be null and void as if the same had never existed;' thus resolving the nation into its original elements; making as if it never had been all that combines and forms men into states, nations or tribes; dissolving all ties but those of nature. Mr. Speaker, I beg the House to realize the measure, the extent and scope of this unrivalled, outrageous act of usurped dominion. Bring it home. Let it be said to you-to the United States of America-that 'all your laws, ordinances, orders and regulations, shall be null as if they had never existed!' Let it be said by a nation that was weak when you were strong; that it had grown up by your side; that had increased while you decreased! Let a nation say that it had lived by your permission; that had pledged itself for your protection and defence! Does it change the case to change the name? Has the Cherokee no attachment to the simple forms of government he has matured and improved; to the customs and regulations of his fathers? Does he not feel? Is he not a man?
In this condition of things, the Indians applied to the President. He told them, as he tells us in his message, 'That if they remain within the limits of the United States, they must be subject to the laws; that they will be protected in their possessions which they have improved but that it seemed to him absurd and visionary to suppose their claims can be allowed to tracts of country merely because they have seen them from the mountain or passed them in the chase.' And thus the subject is presented to Congress, both by the President and the Indians, for consideration. The sympathies of the public having become interested- for, sir, nature is the ally of the weak against the strong-numerous memorials came in from every part of the United States, and the whole subject is referred to your committee on Indian affairs. That committee report a bill making an appropriation of five hundred thousand dollars,
to begin with for the removal of the Indians to the west of the Mississippi. The chiefs say, that is no answer to their inquiry. They desire to know, whether they must submit to the laws of Georgia and to such laws whether she has a right to abrogate their government, and dissolve their nation? The President has told them they must, but has referred the subject to us. They tell us they cannot decide the question of removal, until they know their rights where they are, and not only the Indian chiefs, but the American people, expect us to answer. Here is money for your removal, we say. That is the only answer we deign to give them. Well, say they, if you will not tell us directly what our rights are, will you allow us to remind you of your duties? Will you defend your boundary, and protect us where we are, as you agreed to do? The President has said he will not. They urge upon the consideration of Congress the impossibility of deciding what they will do, until they know what their condition is to be where they are-- whether they must submit to such a law or not-whether they are to retain their lands, or whether Georgia, who has not even 'seen them from the mountains, nor passed them in the chase,' is to have them. Sir, they produce to you your treaty with them. Is this your signature and seal? Is this your promise? Will you keep it? If you will not, will you give us back the lands we let you have for it? The President answers No; and the Congress of the United States answers, Here is money for your removal. We dare not, in the face of the American people, directly affirm the answer of the President; and, therefore, we evade the question, and hope to hide ourselves in the folds of this bill, when the scrutiny shall be made for us. Sir, who so blind as not to see that, by implication, direct and inevitable, you affirm the decision of the President, by giving him the means to carry that decision into effect? You decide that the Indians are the citizens of Georgia, subject to her jurisdiction, and that you will not defend the boundary, nor protect them. This you decide obliquely, at a time when the crisis in the affairs of the Indian nations, and the affairs of the your own honor, too, requires that you should speak out. You cooperate with Georgia-you give effect to her laws--you put the Indians aside, and trample your treaties with them in the dust. And it will be in vain you tell the world you did not set fire to the city, when you saw it burning, and would not put it out, though you was (sic) its hired patrol and watch.
In passing this bill, therefore, the House decide that the Indians are the citizens of Georgia, subject to the jurisdiction of Georgia; and that we cannot interfere to protect them. Now, sir, I deny it all. I affirm the contrary. I maintain that the Indians are not the citizens of Georgia, nor subject to the jurisdiction of Georgia; but that they are sovereign; that we are pledged to protect them in the enjoyment of their sovereignty; and that Georgia has no right that stands in the way of it.--Sir, the great men, who have gone before us in the business, were not so uninstructed in their duties as to be thus put in the wrong by those who have now the administration of affairs.
I shall not go with the gentleman from Tennessee, (Mr. Bell) to the other side of the Mississippi, either for the purpose of ascertaining whether the trees can be made to grow for the use of the emigrant Indians, where none ever grew before, or whether the emigrants themselves will form a convenient barrier between our own settlements and the tribes of Indians west of them; or if convenient, whether they may not have an objection of becoming a breast work to be shot at, or shot through, for our accommodation; or, in a region where there are now frequent victims to famine, whether an addition of such a promiscuous and wild population will not be likely to augment the evil. No sir; for if this bill pass, our faith is gone, our honor violated, and there is nothing left worth a wise man's thought.
I take liberty to enter my protest against the appeal that has been to party feeling in this discussion. If that is to be invoked and enlisted, the destiny of these nations is fixed. It is a spirit that has no heart, no sympathy, no relenting. Truth may pour her radiance upon its visions, and it sees not. Distress may utter her cry, and it hears not. Often has it stained and scaffold with the blood of the innocent. Nor is the sectarian influence that has been called in aid of this measure by the notable gentleman from Georgia (Mr. Lumpkin) less to be deprecated. For, although, at this age of the world, it is not seen actually planting the stake and lighting the fire, yet it is akin to the persecutions of a former age. And it would be as much in place, in the high court of law at the other end of the capitol, to appeal to the sectarian and party feelings of the judges as a correct rule of decision, as to make the appeal to honorable gentlemen here. Sir, this is not a question upon the life or liberty of an individual, but upon the fate of nations. How then can any man, in such a case, and in such an assembly, dare to make the appeal, and hope to be forgiven! What a reflection upon the honor and integrity of this House! Sir, it is not a party question. No man can make it such, until he can quench the last spark of honor in his breast, and stop the currant of feeling in the heart, and put out the light of truth in the mind, and stifle the voice of conscience in the soul. Sir, it is our right to decide this question, it is our duty to decide it upon principle-a right in trust for our constituents and country, and a duty imposed upon us by relations which we cannot change, and from which we cannot escape, coming down upon us from above, and springing up before us from beneath, and flowing in from all around us. Let this question, therefore, be decided upon a full and broad survey of its merits, and its merits only.
My positions are, that the Cherokees are not the tenants of Georgia, nor subject to her jurisdiction, but that they are the sole proprietors of the territory they occupy, whether as hunting ground or otherwise, and are sovereign; and that the United States are pledged to defend their boundary, and to protect them in all their rights and privileges as a nation.
I suppose it will be admitted, that the Cherokees are a distinct class of men, from the Georgians, that they were once sovereign, and that the presumption is they are sovereign still.--The onus probandi, as the profession say, is therefore upon Georgia. If she claims the right of dictating law to this nation, once sovereign, it is for her to show whence she derived it.
With this view of the subject, I propose to go back to the origin of the State of Georgia, and briefly to trace her history to the Revolution, to see what her rights then were in relation to the Indians, as admitted and established by compact. This will preclude the necessity of enquiring as to natural rights.
In 1732, Georgia was a part of South Carolina. And in order to erect a barrier against the Indians and Spaniards in Florida, upon the frontier of South Carolina, George II, by patent, created a corporation, styled the 'Trustees for establishing the colony of Georgia in America,' to hold for his use all the land between the Atlantic and the South Sea, as it was then termed, within the degrees of latitude and the boundaries therein given. No individual was to hold more than fifty acres. The command of the militia was given to the Governor of South Carolina. In this patent, nothing is said of the Indians. In 1752, it was surrendered. Oglethrope, who was the active agent of the corporation, in 1733 arrived in Georgia with a hundred and fourteen emigrants, men, women and children, and selected the site of Savannah, as the most eligible place for a lodgement, where he erected a fort. The Upper and Lower Creeks were then twenty-five thousand strong. In order to get a title to some land, he employed a female of the half-blood the wife of a trader, to whom he made liberal presents, and gave a salary of a hundred pounds a year. She assembled fifty Indian chiefs, and prepared them to accede to Oglethrope's proposition of a treaty. They ceded, with some reservations, all the land to the head of tide water, within the limits of the patent. That treaty admits that the Indians owned the land, and were sovereign. They were treated with as 'the headmen of the Creek Nation:' and the land, in express terms is said to be theirs. 'Although this land belongs to us,' the Creeks say, yet, in consideration the Georgians have come for the good of our wives and children, and 'to teach us what is straight' we make the cession. At Coweta, in 1739, another treaty, preceded by large presents, was made, in which the boundaries of the first cession were more particularly defined; and the trustees declare, 'that the English shall not enlarge or take any other lands except those granted by the Creek Nation.' In 1752, at Mobile, at a convention of Indian nations, Captain Steuart, the Indian agent, told them, 'that the boundaries of their hunting grounds should be accurately fixed, and no settlement permitted upon them,' assuring them 'that all treaties would be faithfully kept.' And at a meeting at Augusta, in 1763 to which Captain Steuart's 'talk' was preliminary, a further cession of land was made by the Creeks and Cherokees in payment of the debts they had contracted. The Governors of the four Southern States were present.- As showing clearly how this subject was viewed by them in 1767, we find the Indians complaining to the Governor of Georgia of encroachments upon their lands; and they ask him 'how it could be expected of them to govern their young warriors, if he could not restrain the white people?' In 1773 they ceded another tract of land, and it was then agreed, 'that the bounds fixed by the treaty should be the mark of division between his majesty's subjects and the said Indian nations.'
The Indian boundary limited the territory of the colonists on the west.- Within this they had a right to indicate law; beyond this they had no right to do it. If they, or the king, their master, had such right, then the Indians were bound to submit. A right implies a duty. Now, who will pretend, that if the king had passed a law abrogating their customs, and making them amenable to the courts of Georgia, the Indians would not have had a right to resist? If the Cherokees were subject to the jurisdiction of Georgia, then, prior to the treaty of 1763, the Indians beyond the Rocky Mountains were, (for the charter extended to the Pacific Ocean) some of whom had never heard of the English nation or king. Who will pretend that he had a right to subject them to his laws? He might have had the power to conquer them, but he had no right to do it. This would have been a right to rob and murder.
The Indian boundary is sometimes called the 'line of ordinary jurisdiction,' implying an extraordinary jurisdiction beyond it. What was that?- by the right of discovery, settled by compact among the discovering nations, and since confirmed by treaties with most of the Indians themselves, the King of Great Britain had the sole and exclusive right of purchasing of the Indian nations their title to the land lying in that part of America, which had been assigned to him. We call it the right of pre-emption. The king never attempted or claimed anything more. I affirm, therefore, that, with this exception, the Indian boundary was the boundary of the jurisdiction of both king and colony. I affirm, further, that the Indian nations were the sole and absolute owners of the land which they had not ceded, and which lay west of the Indian boundary, subject only to this restriction upon the right of alienation. Accordingly, the king, in his proclamation of 1763, disclaims any other right to it. He says, 'it is but just and reasonable, and essential to our interest, 'c. that the tribes of Indians who live under our protection' (as they now live under the protection of the United States) 'should not be disturbed in their possessions, which, not having been purchased by us, or ceded to us, are reserved to them: we do, therefore, declare that no governor or commander shall survey or grant them, and that they are reserved to the Indians.' The king does not rest the right of the Indian nations to these lands upon concession, gift, or grant, indulgence, or expediency, but upon the broad and solid basis of the 'justice and reasonableness' of their unalienated title; a due regard for which principles will be found always to comport with a wise policy.
Before I pass from this period, as the whites commonly speak for the Indians, it is but right, when we can, to let them speak for themselves. I refer to the negotiation at Lancaster, in 1744. The Governor of Maryland claimed some of their land by possession. Canasateego--'When you mentioned the affair of the land yesterday, you went back to old times, and told us you had had the province of Maryland above one hundred years in comparison of the length of time since our claim began-since we came out of the ground? For we must tell you that, long before one hundred years, our ancestors came out of this ground, and their children have remained here ever since. You came out of the ground beyond the seas; but here you must allow us to be your elder brothers, and the lands to belong to us long before you knew anything of them.'
To Virginia, who claimed some of their lands by conquest, another chief answered-'Though great things are well remembered by us, we do not remember that we were ever conquered by the great king, or that we have been employed by him to conquer others. If it was so, it is beyond our memory,- We do remember we were employed by Maryland to conquer the Conostogas; and the second time we were at war with them, we carried them all off.'
The House will perceive what the views of these people were of their right to their land, and what their notions were of possession and conquest. I think it clear, therefore, that before the Revolution, the Cherokees were not the citizens of Georgia, nor subject to the jurisdiction of Georgia, nor tenants at the will of Georgia.
When the troubles with Great Britain came on, Congress immediately assumed the direction of the Indian relations, as of nations distinct from the States, and independent of them. After a short session for other purposes, in the autumn of 1774, Congress met in May, 1775, and in June a committee was appointed to make an appeal to the Indian nations. They were addressed thus, by order of Congress:
'Brothers and friends: this is a family quarrel between us and Old England, Indians are not concerned in it.'
In the same month, the Indian tribes were arranged into three departments; and commissioners were appointed to treat with them 'in behalf of the United States, to preserve peace with them, and prevent their taking part in the commotions of the times.'
In January, 1776, rules for Indian intercourse were established, interdicting all 'trade with them without a license.'
In 1777, another 'talk' was addressed to them, reaffirming that they ought to take no part in the war between the United States and Great Britain, and stating also, that although the 'Cherokees had been prevailed upon to strike us, they had seen their error, had repented, and we had forgiven them, and renewed our ancient covenant chain with them.'
In 1778, a treaty with the Delaware Nation was concluded at Fort Pitt. The parties to it were 'The United States of North America and the Delaware Nation.' It stipulated: That there shall be peace; and the troops of the United States may pass 'through the country of the Delaware Nation,' upon paying the full value of the supplies they may have. It further provides, that, 'whereas the enemies of the United States have endeavored, by every artifice, to possess the Indians with an opinion that it is our design to extirpate them, and take possession of their country-to obviate such false suggestions, the United States guaranty to said nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as bounded by former treaties;' and they further provide for a confederacy of tribes, of which the Delaware Nation was to be the head, and to have a representative in Congress.
Here is recognition enough of the rights of Indians. And, to put an end to the false suggestion, which none but an enemy could make, assistance is given, by treaty, binding upon the whole country, that their territorial rights shall be defended, in the fullest and most ample manner, as antecedently defined.
(To be continued.)